Citation Nr: 0808348
Decision Date: 03/12/08 Archive Date: 03/20/08
DOCKET NO. 06-20 926 ) DATE
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)
On appeal from the
Department of Veterans Affairs Regional Office in Providence,
Rhode Island
THE ISSUE
Entitlement to service connection for post traumatic stress
disorder (PTSD).
REPRESENTATION
Appellant represented by: Massachusetts Department of
Veterans Services
WITNESS AT HEARING ON APPEAL
The veteran
ATTORNEY FOR THE BOARD
John Z. Jones, Counsel
INTRODUCTION
The veteran served on active duty from August 1964 to July
1967.
This matter has come before the Board of Veterans' Appeals
(Board) on appeal from a May 2005 rating decision of the
Providence, Rhode Island, Department of Veterans Affairs (VA)
Regional Office (RO).
The veteran testified at a video conference hearing before
the undersigned in February 2008. A transcript of that
hearing is associated with the claims file. During the
hearing, the veteran and his representative requested, and
the undersigned granted, a 30-day abeyance period within
which to submit additional evidence. No additional evidence
has been submitted.
FINDING OF FACT
The medical evidence of record does not contain a diagnosis
of PTSD.
CONCLUSION OF LAW
PTSD was not incurred in or aggravated by service. 38
U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304
(2007).
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veterans Claims Assistance Act (VCAA)
The VCAA, codified at 38 U.S.C.A. §§ 5100, 5102, 5103A, 5106,
5107, 5126, was signed into law on November 9, 2000.
Implementing regulations were created, codified at 38 C.F.R.
§§ 3.102, 3.156(a), 3.159 and 3.326 (2006).
VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38
C.F.R. § 3.159(b) must: (1) inform the claimant about the
information and evidence not of record that is necessary to
substantiate the claim; (2) inform the claimant about the
information and evidence that VA will seek to provide; (3)
inform the claimant about the information and evidence the
claimant is expected to provide; and (4) request or tell the
claimant to provide any evidence in the claimant's possession
that pertains to the claim. Pelegrini v. Principi, 18
Vet. App. 112, 120-121 (2004) (Pelegrini II). This "fourth
element" of the notice requirement comes from the language
of 38 C.F.R. § 3.159(b)(1). Charles v. Principi, 16 Vet.
App. 370, 373-74 (2002); Quartuccio v. Principi, 16 Vet. App.
183, 186-87 (2002).
The United States Court of Appeals for Veterans Claims
(Court) held in Pelegrini II that VCAA notice, as required by
38 U.S.C.A. § 5103(a) (West 2002), to the extent possible,
must be provided to a claimant before the initial unfavorable
RO decision on a claim for VA benefits. Pelegrini II,
18 Vet. App. 112, 119-20 (2004). See, too, Mayfield v.
Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).
In this case, the veteran was provided notice of the VCAA in
March 2005, prior to the initial adjudication of his claim in
the May 2005 rating decision at issue.
The VCAA letter summarized the evidence needed to
substantiate the claim and VA's duty to assist. It also
specified the evidence the veteran was expected to provide,
including the information needed to obtain both his private
and VA medical treatment records. In this way, the VCAA
letter clearly satisfied the first three "elements" of the
notice requirement. In addition, the March 2005 letter
stated: "If you have any evidence in your possession that
pertains to your claim, please send it to us." This
satisfies the fourth "element".
During the pendency of this appeal, on March 3, 2006, the
Court issued a decision in the consolidated appeal of
Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which
held that the VCAA notice requirements of 38 U.S.C.A.
§ 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements
of a service connection claim. Those five elements include:
1) veteran status; 2) existence of a disability;
(3) a connection between the veteran's service and the
disability; 4) degree of disability; and 5) effective date of
the disability. The Court held that upon receipt of an
application for a service-connection claim, 38 U.S.C.A. §
5103(a) and 38 C.F.R. § 3.159(b) require VA to review the
information and the evidence presented with the claim and to
provide the claimant with notice of what information and
evidence not previously provided, if any, will assist in
substantiating or is necessary to substantiate the elements
of the claim as reasonably contemplated by the application.
Id. at 486. Additionally, this notice must include mention
that a disability rating and an effective date for the award
of benefits will be assigned if service connection is
granted. Id.
In this case, the veteran received Dingess notice in October
2006, including as it relates to the downstream disability
rating and effective date elements of his claim.
The Board finds that all relevant evidence necessary for an
equitable resolution of the issue on appeal has been
identified and obtained, to the extent possible.
The evidence of record includes service medical records, a
private physician's statement and a report of VA examination.
The veteran has not indicated he has any further evidence to
submit to VA, or which VA needs to obtain. There is no
indication there exists any additional evidence that has a
bearing on this case that has not been obtained. The veteran
has been accorded ample opportunity to present evidence and
argument in support of his appeal. All pertinent due process
requirements have been met. See 38 C.F.R. § 3.103 (2007).
Pertinent Law and Regulations
In general, service connection may be granted for disability
or injury incurred in or aggravated by active military
service. See 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §
3.303 (2007). Additionally, service connection may be
granted for any disease diagnosed after discharge, when all
the evidence, including that pertinent to service,
establishes that the disease was incurred in service. See 38
C.F.R. § 3.303(d) (2007).
In order to be considered for service connection, a claimant
must first have a disability. In Brammer v. Derwinski, 3
Vet. App. 223 (1992), the Court noted that Congress
specifically limited entitlement for service-connected
disease or injury to cases where such incidents had resulted
in a disability. See also Rabideau v. Derwinski, 2 Vet. App.
141, 143 (1992) [service connection may not be granted unless
a current disability exists]. A "current disability" means a
disability shown by competent medical evidence to exist. See
Chelte v. Brown, 10 Vet. App. 268 (1997).
Service connection for PTSD, in particular, requires medical
evidence diagnosing the condition in accordance with 38
C.F.R. § 4.125(a), credible supporting evidence that the
claimed in-service stressors actually occurred, and a link,
established by medical evidence, between the current
symptomatology and the claimed in-service stressors. 38
C.F.R. § 3.304(f) (2007).
With regard to the second PTSD criterion, evidence of
stressors in service, the evidence necessary to establish
that the claimed stressor actually occurred varies depending
on whether it can be determined the veteran "engaged in
combat with the enemy." 38 U.S.C.A. § 1154(b) (West 2002);
38 C.F.R. § 3.304(d) (2007). If the evidence establishes the
veteran engaged in combat with the enemy, and the claimed
stressor is related to that combat, in the absence of clear
and convincing evidence to the contrary, and provided that
the claimed stressor is consistent with the circumstances,
conditions, or hardships of the veteran's service, the
veteran's lay testimony alone may establish the occurrence of
the claimed in-service stressor. 38 C.F.R. § 3.304(f).
Analysis
In this case, the record does not show that the veteran has
ever been diagnosed with PTSD. In a March 2005 statement,
Dr. C.B. reported that he had treated the veteran since 1993
for stress and anxiety regarding a number of events that
happened during his life; however, no diagnosis of PTSD was
provided. Indeed, following a March 2005 VA psychiatric
examination, a VA examiner concluded that the veteran did not
endure symptoms consistent with a diagnosis of PTSD. Nowhere
in the record is there a competent medical diagnosis of PTSD.
The Board acknowledges the VA Form 9 filed in July 2006
wherein the veteran's representative indicated that the
veteran would be asked to see a counselor to see if he could
get a diagnosis of PTSD; however, no additional information
has been received from either the veteran or his
representative. In addition, the veteran testified that he
had received treatment from Dr. C.B. but was unable to state
whether a diagnosis of PTSD had been rendered. As noted
above, a 30 day abeyance was granted to give the veteran and
his representative additional time to submit pertinent
evidence, including treatment records. Neither the veteran
nor his representative has submitted any additional evidence.
The record on appeal does not contain any diagnosis of PTSD.
To the extent that the veteran contends that he has PTSD, it
is well established that lay persons without medical
training, such as the veteran, are not competent to comment
on medical matters such as diagnosis, and cannot attribute
symptoms such as memory loss to a particular cause. See
Espiritu v. Derwinski, 2 Vet. App. 492, 494-5 (1992); see
also 38 C.F.R. § 3.159 (a)(1) [competent medical evidence
means evidence provided by a person who is qualified through
education, training, or experience to offer medical
diagnoses, statements, or opinions].
In short, the competent medical evidence of record supports
the conclusion that the veteran does not have PTSD. In the
absence of the claimed disability, service connection may not
be granted. See Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir.
1997); Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998)
[service connection cannot be granted if the claimed
disability does not exist].
As was described in the VCAA discussion above, the veteran
has been accorded ample opportunity to provided medical
evidence in support of his claim [i.e., evidence of a
diagnosis of PTSD.] He has not done so. See 38 U.S.C.A. §
5107(a) (West 2002) [it is a veteran's responsibility to
support a claim of entitlement to VA benefits].
In summary, for reasons and bases expressed above, the Board
concludes that service connection for PTSD is not warranted.
The benefit sought on appeal is denied.
ORDER
Entitlement to service connection for PTSD is denied.
____________________________________________
K.J. ALIBRANDO
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs